Sexual assault can be any unwanted physical contact of a sexual nature or in a sexual situation, done intentionally or
recklessly without your permission (consent). It includes attempts and threats of unwanted sexual contact. Sexual contact can range from kissing or sexual touching to sexual intercourse.

Sexual assault is a criminal offence. You do not have to have physical injuries. There is no time limit to report sexual
assault.

Anyone can be sexually assaulted. Anyone can commit sexual assault – it does not matter what gender you are or whether or not you were in a relationship. To read more about what it means to legally “consent” to sexual activity, see the article, “Law of Consent”.

Sexual assault is one of the most under-reported crimes in Canada. In 2009, Canadian women reported 460,000 incidents of sexual assault by persons other than marital partners during the one-year period studied.1 Even though the rate of self-reported sexual assaults has remained relatively stable, the percentage of offenses that were reported to the police dropped from about 12% in 20091 to 5% in 2014.3

If you are in immediate danger, you should call the police (911) or another emergency number for immediate assistance. Your safety is the most important thing.

If you are not in immediate danger, you have the chance to think about whether or not you want to call the police. It is always your choice. As shown by the statistic above, most survivors do not report sexual assault to the police. There are many reasons for this. Survivors of sexual assault often feel ashamed or embarrassed about what happened. They may not want their family or friends to know about it, especially if the person who assaulted them is a family member, friend, co-worker, acquaintance or intimate partner.

A survivor may also experience cultural, racial, religious or language barriers and discrimination when they try to access the criminal justice system.

Unfortunately, the reality is that some police officers, lawyers and judges still believe many of the myths about sexual assault. When interacting with the different people who make up the criminal justice system, survivors are sometimes made to feel that they responsible for what happened to them or are somehow to blame for the assault.

As well, going through the criminal justice process, a survivor must tell their story over and over again, often to unsympathetic people. Many survivors of sexual assault describe feeling “revictimized” by this process. They also fear being cross-examined by an accused’s lawyer in a trial or having to talk about their past sexual history or private records about their mental health, addiction issues or other personal questions. While there are laws in place to protect survivors from automatically having to reveal these types of sensitive information, it can be part of the criminal process. It is usually extremely difficult.

Many survivors think that calling the police and using the criminal law is their only legal option if they have been sexually assaulted. While this is the only option that can lead to the person who assaulted you going to jail, there are other legal choices. Your other choices include making a human rights complaint, a claim for Criminal Injuries Compensation, a complaint to a disciplinary or professional governing body (for example, your university or the College of Physicians and Surgeons Complaints Committee etc.), or bringing a lawsuit in Civil Court.

If you have been sexually assaulted, there is no right or wrong way to react. You should make the best decision for you. Some survivors choose to concentrate on their own emotional healing. Others feel that in order to move on they need to see the perpetrator punished. Many survivors want to distance themselves from what happened. Others have the strength and energy to report the assault to the police or to begin other kinds of legal proceedings. What is important is that every survivor of sexual assault has access to information so that they can make well-informed
decisions.

Under the Ontario Human Rights Code, it is against the law to discriminate against anyone because of their race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences (in employment only), marital status, family status, disability, gender identity or gender expression.

Sexual assault is not only a criminal offence, but also a form of sexual harassment or discrimination based on your sex and it is against human rights laws. The Human Rights Code protects Ontarians from discrimination in 5 social areas (employment relationships, accommodation (housing), the provision of goods and services or access to facilities, making contracts and in relation to membership in unions, trade or professional associations). This means that if you were sexually assaulted at work, by a landlord or trying to access a government service etc., you could make a human rights complaint.

For help and more information about the human rights process, contact the Human
Rights Legal Support Centre Toll Free: 1-866-625-5179 or TTY Toll Free: 1-866 612-8627.

For more information about workplace violence and harassment, read the articles under “workplace rights”.

The Criminal Injuries Compensation Board (CICB) provides financial compensation to survivors of violent crime that happened in Ontario, including sexual assault. It is an administrative body funded by the Ontario government. The CICB can compensate survivors for pain and suffering, loss of income treatment/counselling expenses, funeral expenses and other costs that result from being a survivor of crime.

You can apply for compensation from the Board regardless of whether or not the person who committed the crime has been criminally charged, prosecuted and/or convicted (found guilty) for the sexual assault. However, you must prove that is “more likely than not” that the sexual assaulted happened and that your injuries resulted from that crime. If the person was convicted in Court, the CICB will assume that the crime happened and it will be easier to go forward with your case.

There is no time limit to apply based on sexual assault. You can apply at any time after the sexual assault happened. If you have a low income, you may be eligible for help from a community legal clinic, Legal Aid Ontario or the Victim/Witness Assistance program.

Depending on your situation, another option for survivors is to consider reporting the sexual assault to a disciplinary committee or a professional governing body. For example, if you were sexually assaulted by someone you attend school with, you could report it to the university administration or disciplinary committee to try and get the student suspended or expelled. Starting in January 2017, changes to the law in Ontario require colleges and universities to have sexual violence policies, including how they will respond to complaints and the process for investigating complaints of sexual violence. For more information, see the article “Sexual Assault: Campus Setting”.

If you were sexually assaulted by a professional, such as a doctor, dentist, teacher, lawyer etc., you can report the assault to the regulatory body that governs their profession. Most professions have organizations that are in charge of licensing the people who want to practice that profession. They have strict rules or codes of conduct that the professionals have to follow if they want to keep their licenses to do those jobs. These governing organizations have complaint processes for people to report misconduct or inappropriate behavior by the professional. There are disciplinary or complaint committees that investigate the claims and decide if the professional’s license should be taken away or suspended.

Reporting to disciplinary or professional governing bodies will require you to show proof that the sexual assault happened. The process usually involves a hearing where both sides will tell their side of the story of what happened. You might be asked to mediate with the perpetrator. It can be a difficult process and it is important to have a good support person. It is also a good idea to get legal advice from a lawyer or your community legal clinic to better understand your rights and options.

If you were sexually assaulted, another legal option is to consider suing your attacker in Civil Court. You can do this even if there is a criminal case against the perpetrator or even if the criminal case did not find them guilty. A civil suit is a private action, between you and the person who harmed you.

You can bring a civil suit against someone for these types of issues, among others:

Sexual assault/assault – this has the same meaning in civil law as in criminal law (see above);

breach of fiduciary duty – if the person who harmed you was in a position of power and trust over you (such as your employer), they have certain responsibilities (referred to as a “fiduciary duty”). If they abuse their position, for example by pressuring you to do something against your will or harassing you, it may be considered a “breach of fiduciary duty”;

vicarious liability – you can also sue “third-parties” if they helped create that conditions that led to the sexual assault or did not do anything to prevent it from happening (for example your employer or the university administration). This means that the employer or administration is also responsible for the actions of the person who assaulted or harassed you.

The point of a civil action is for the survivor to get financial compensation for loss or damage that resulted from the event. For example, you may have lost wages as a result of missing work, had to pay for medical care, or need to replace damaged clothing or other property.

A civil law suit does not assign criminal responsibility. There is no Crown Attorney in a civil suit. You are called the “plaintiff” and the person who assaulted you is called the “respondent” or “defendant”. You will both need your own lawyers to represent you in Court.

What are some of the advantages to bringing a civil claim?

The main advantage of a civil suit is that the “burden of proof” for a civil case is lower than for a criminal trial. In a criminal trial, the Crown lawyer must prove the accused is guilty “beyond a reasonable doubt,” which can be very difficult, especially in sexual assault cases where there are usually no witnesses and not a lot of evidence. But, in a civil lawsuit, you only need to prove that it is more likely than not that the sexual assault happened. In other words, as long as you can show a more than 50% chance that it happened, you have proven your case. This is in part why it is possible for an accused to be found not guilty in a criminal case, but to lose a civil suit.

If you win your civil case, you will receive “damages.” Damages are money to compensate you for the costs and harms you suffered, including “physical and emotional” harm from the sexual assault.

In a civil suit, you also have more control over the process because a civil lawsuit is a private legal action (it is entirely between you and the person you are suing). You have control over how you want to proceed, whether or not to settle, and whether or not to appeal if you lose. But you will need to hire a lawyer, and you will be responsible for the costs associated with going to court.

What are some of the disadvantages to bringing a civil claim?

Civil cases can be very expensive and the process of bringing a lawsuit can be very time consuming. The goal of a civil court is to have the parties agree on a settlement without having to go to trial. This means that you will be encouraged to settle your case and may be asked to mediate with the person who harmed you.

Overall, only 2-3% of claims go to trial without being resolved by the parties beforehand.4 There are also several ways the litigation process can be delayed, through court backlog or through actions of the other party’s lawyer. It is not unusual for people to be involved in litigation for 1-2 years, or more. It is also important to keep in mind that during this time, you will be forced to come into regular and direct contact with the person who harmed you, and that you may find this traumatizing after what they did to you.

In some cases, if you win, the court may then order the other party to pay your legal costs, in addition to awarding you money to compensate you for the harm you suffered. This is called a “costs award.” However, it is unlikely that the amount the court orders in costs will cover what you actually paid your lawyer. Before you bring a civil suit, you should consider whether it will be financially worth your while to do so. A civil suit usually only makes sense if you are suing someone who will be able to pay the awarded damages if you win your case.

Time Limits

If you are wondering whether a civil suit is a good option for you, it is best to consult a lawyer as soon as possible. A lawyer will be able to help you determine what costs might be involved, and the kind of compensation you might get. There is NO time limit for cases involving sexual violence or sexual assault. You can make a civil claim at any time after the sexual assault happened. For other civil claims, you have only 2 years from the time the event occurred, or the time you became aware that someone has harmed you, to start a lawsuit. After that time, your claim is referred to as “time barred.” There may be exceptions to the two-year rule, depending on your situation.

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Information on OWJN is not legal advice

OWJN contains general legal information only. OWJN does not give legal advice. If you need legal advice, you should contact a lawyer, who can help you make decisions about your legal rights. You may be eligible for legal advice from a community Legal Aid clinic.